BOSTON COLLEGE
Environmental Affairs

Student
Publications

Volume 27 2000 Number 4

[Pages 567-630]
NITRATES FROM AGRICULTURE IN EUROPE: THE EC NITRATES DIRECTIVE AND ITS IMPLEMENTATION IN ENGLAND
Margaret Rosso Grossman*

The United Nations recently issued a stern warning regarding the excessive use of nitrogen in agriculture: “[W]e are fertilizing the Earth on a global scale and in a largely uncontrolled experiment.” Nitrogen is an essential nutrient for crop production. Excess nitrogen, however, pollutes both surface water and groundwater and has serious health and environmental consequences. In response, the European Community (EC) and its Member States have enacted regulatory measures to reduce further pollution from nitrates used in agriculture. This Article analyzes the 1991 EC Nitrates Directive and its implementation, discussing agriculture in the EC, the use of nitrogen, and the harmful effects of excess nitrates. The Article also considers environmental law-making in the EC and traces the history of the EC’s treatment of nitrates from agriculture. The Article focuses on the nitrate situation in England, with emphasis on voluntary programs to control nitrates. Finally, the Article concludes with an analysis of the implementation of the Nitrates Directive in England and a discussion of an important 1999 European Court of Justice decision that interprets the Directive.

[Pages 631-706]
DISPARATE IMPACT LAWSUITS UNDER TITLE VI, SECTION 602: CAN A LEGAL TOOL BUILD ENVIRONMENTAL JUSTICE?
Julia B. Latham Worsham*

Over the past decade, environmental justice commentators and advocates increasingly have focused on the role that Title VI of the Civil Rights Act of 1964 could play in remedying environmental problems in communities of color. Specifically, this attention recently has targeted the application of civil rights law to the processes employed by government actors in issuing industrial use facility siting permits and the disparate impacts that these practices have on minorities. Ironically, there is no controlling authority regarding whether such suits legitimately may be brought, or what their requirements and parameters might be. This article explores the development of such suits and probes their potential contours, ultimately suggesting how courts might address such issues as standing, burdens of proof, the elements of the prima facie case, and remedies.

[Pages 707-740]
ATTORNEYS' FEES IN ENVIRONMENTAL CITIZEN SUITS: SHOULD PREVAILING DEFENDANTS RECOVER?
Kerry D. Florio*

Attorneys’ fees in environmental citizen suits enable private citizens to enforce environmental legislation. First introduced in the federal Clean Air Act, attorney’s fee provisions are now included in virtually all environmental legislation. Without provisions for the award of attorneys’ fees, legislation allowing for private citizen enforcement would be practically meaningless. Attorneys’ fees provisions typically allow for prevailing parties to be awarded attorneys’ fees when it is “appropriate.” The appropriateness standard has routinely justified awarding attorneys’ fees to prevailing plaintiffs, while defendants have commonly been awarded fees only when a suit is deemed frivolous, harassing, or without merit. This Comment explores how prevailing defendants continue to rely on the language of the applicable statutes to argue that they are entitled to attorneys’ fees as prevailing parties, and how the principles of equity can provide a better basis for awarding attorneys’ fees to prevailing defendants.

[Pages 741-778]
CERCLA DERIVATIVE SUITS
Primo Fontana*

Corporations frequently incur liability pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Pursuant to the statute, however, the officers and directors of such corporations cannot be held directly liable. Despite this statutory protection, when corporations violate CERCLA, shareholders may be able to use a derivative suit to hold officers and directors liable based on the corporate actors’ fiduciary duty of care.

[Pages 779-806]
Reviving CERCLA's Liability: Why Government Agencies Should Recover Their Attorneys' Fees in Response Cost Recovery Actions
K. Jason Northcutt*

The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) imposes strict, retroactive liability on owners or operators of sites contaminated with hazardous waste. CERCLA also authorizes private parties and the Environmental Protection Agency (EPA) to initiate the cleanup process and to recover the costs of that cleanup from the responsible party. The language of section 7 of CERCLA, however, is ambiguous as to whether attorneys’ fees incurred in litigation to recover these response costs are recoverable. The Supreme Court in Key Tronic Corp. v. United States, held that private parties cannot recover attorneys’ fees in such actions. Even so, the Court expressly reserved judgment on the issue of whether, in recovery actions taken by EPA, attorneys’ fees could be recovered. This Comment argues that the history, structure, and purpose of CERCLA all suggest that the Supreme Court should follow the decision of the Ninth Circuit in United States v. Chapman, and hold that EPA attorneys’ fees are recoverable as part of the response costs of cleanup.